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Tilting at Windmills

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February 16, 2006
By: Kevin Drum

NSA UPDATE....A federal judge has ordered the Bush administration to repond within 20 days to a request for documents related to the NSA's domestic spying program:

Records sought by the [Electronic Privacy Information Center] include an audit of the program, a checklist guide used to determine whether an individuals phone or e-mail messages could be monitored, documents showing how information gleaned through eavesdropping had been used, and other legal opinions about the program.

Of course, the Department of Justice is likely to turn down the request, and then the case will be appealed. But it's still interesting news. I'd like to see that famous 48-point checklist myself.

Kevin Drum 4:46 PM Permalink | Trackbacks | Comments (89)

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More exciting news for the Democrats working on their "Contract With Al Queda" platform for the upcoming elections.

Good luck with that!

Posted by: BigRiver on February 16, 2006 at 4:50 PM | PERMALINK

"A federal judge has ordered the Bush administration to respond....the Department of Justice is likely to turn down the request."

So what is it, an order or a request? That would seem to make a difference.

Posted by: JJF on February 16, 2006 at 4:55 PM | PERMALINK

If the (Republican) President does it, it is inherently legal. And the V.P., too -- he can, for example, declassify anything. For They Are Gods.

And their sycophants are so good at absurd name-calling. The intellectual vanguard. The Party of Ideas.

Posted by: Gore/Obama '08 on February 16, 2006 at 4:56 PM | PERMALINK

I can't believe these righties are dumb enough to think AQ would get on a phone and start talking bombs,buildings and plots.There smart enough to use code words and conversations,conversations that anybody would say. therefore they must be spying on everyone.

Posted by: rico swava' on February 16, 2006 at 4:59 PM | PERMALINK

I think people who roll over on this on idiots, there is no proof this worked, and even if this was implmented beyond what they wanted, just simple background checks could have stopped the 9/11 basterds. Why are so many people ready to give up freedom for the sake of giving up freedom? I say until I start seeing a wave of results that this is a sham, I would love to see how many times the Kerry campaign might have been checked. How did that Ben Franklin quote go again about freedom? But on another note its simply amazing to watch how much people will bend reality and facts to defend pResident Smush. I am sure the usual suspects will be on here soon telling us how wrong we are to guard our freedom.

Posted by: Jeremy on February 16, 2006 at 5:06 PM | PERMALINK

Some tinfoil-helmet conspiracy theorist above just said the Bush administration "must be spying on everyone."

HA HA HA HA HA HA HA!

Posted by: Monkey See on February 16, 2006 at 5:07 PM | PERMALINK

You have to wonder if people like BigRiver and the group he represents, would have ever made it out of World War II alive. I mean, just reading the paper from their basements in Wisconsin would have caused them to scream and faint dead away...

Posted by: craigie on February 16, 2006 at 5:08 PM | PERMALINK
So what is it, an order or a request?

From the PoV of the Judge, its an order. From the PoV of the DoJ, not so much.

Posted by: cmdicely on February 16, 2006 at 5:11 PM | PERMALINK

Another odd thing I noticed was how the right will keep you safe,but yet we keep getting reports like The failures of 911,The failures of Katrina,The failures of Iraq.Seems like they can't get anything right.

Posted by: rico swava' on February 16, 2006 at 5:12 PM | PERMALINK

Who is this activist judge usurping president's power? He is intentionally undermining our national security. How unpatriotic.

Posted by: Mini Al on February 16, 2006 at 5:14 PM | PERMALINK

Thanks to my contacts at the very highest levels of government, I've seen portions of the checklist. From memory, I can cite some of the items:

#3: Did the suspect vote for John Kerry in 2004?
#4: Is the suspect a registered Democrat?
#8: Does the suspect believe in evolution?
#13a: Is the suspect a regular churchgoer?
#13b: If yes, is the church an administration-approved denomination?
#22: Does the suspect know who Paul Krugman is?
#34: Does the suspect regularly watch a television news broadcast (other than Fox News)?
#48: Is the suspect a non-Caucasian?

I may be able to remember more later. Glad to be of service.

Posted by: Alek Hidell on February 16, 2006 at 5:16 PM | PERMALINK

More exciting news for the Democrats working on their "Contract With Al Queda" platform for the upcoming elections.

Contract with Jack Abramoff. 'Nuff said.

Posted by: Stefan on February 16, 2006 at 5:18 PM | PERMALINK

meanwhile, sen. pat roberts --fixes-- fisa for the white house...


how's that phase-2 investigation into the bush administration --fixing-- the intell around the policy to invade iraq?

pat...how's that coming along....?

Posted by: thisspaceavailable on February 16, 2006 at 5:18 PM | PERMALINK

I'd like to see that famous 48-point checklist myself.

So would a hell of a lot of other people. And of course, nobody at the EPIC would leak it to the public, would they?

If the Democrats want the program killed, they should have the balls to just come out and do it.

Posted by: tbrosz on February 16, 2006 at 5:32 PM | PERMALINK

How long are innocent people kept on the record? If the program has absolutely no oversight, how do we know if it's not picking up innocent people? There's no reason not to work with a Republican majority other than this administration is taking advantage of this program in illegal ways in the name of national security. Something other than spying on potential terrorists is going on...
http://www.whereistand.com/6721

Posted by: Brianr on February 16, 2006 at 5:39 PM | PERMALINK

Tbroz what would an AQ telephone conversation sound like?

Posted by: rico swava' on February 16, 2006 at 5:40 PM | PERMALINK

craigie:

You have to wonder if people like BigRiver and the group he represents, would have ever made it out of World War II alive. I mean, just reading the paper from their basements in Wisconsin would have caused them to scream and faint dead away...

Might not have been so bad to read. Back then the newspapers and media were on our side.

Posted by: tbrosz on February 16, 2006 at 5:41 PM | PERMALINK

If the Democrats want the program killed, they should have the balls to just come out and do it.

If Bush wants to conduct his surveillance legally, he should have the balls to just come out and ask Congress to change the law.

Shame on you for your typical dishonesty, tbrosz. I'd hoped you were turning over a new leaf, but I guess you admit there is no honest way to defend these cretins. You're in good company with that yo-yo BigRiver.

Posted by: Gregory on February 16, 2006 at 5:42 PM | PERMALINK

Has Vegas posted the odds of an appeal being filed? I guess since the probability is 1,there wouldn't be much action.
The government should have made them file an FOIA request. At 25 cents a page,the national debt could have been much reduced.

Posted by: TJM on February 16, 2006 at 5:42 PM | PERMALINK

Back then the newspapers and media were on our side.

Oh, puh-leeeaze. The hoary "liberal media" myth, and a Moonie Times article to back it up? You're hopeless, tbrosz. Shame on you, and shame on you for dusting off your loathsome Dolschtoss argument. I needn't remind you who was famous for putting that bit of dishonesty to good use, now do I?

Posted by: Gregory on February 16, 2006 at 5:44 PM | PERMALINK

And let's not forget Sen. Orrin Hatch(R) let the cat out of the bag right after 911.He said on Nat.TV we are monitoring phone calls from AQ as we speak.All calls from that day stopped.

Posted by: rico swava' on February 16, 2006 at 5:45 PM | PERMALINK

BrianR: In a bureaucracy, no piece of paper is ever thrown away. If it is, two copies are made first. Remember the FBI files on everyone? Well your children can now say the same thing about their parents - they have an FBI, CIA, NSA, file. You are now there to be read about by future historians when the Revolution sets America free again.

Posted by: murmeister on February 16, 2006 at 5:48 PM | PERMALINK

You say request, I say demand. Let's call the whole thing off.

Checklist
#1 Is Bush king?

If yes, then skip the rest.

Posted by: MarkH on February 16, 2006 at 5:48 PM | PERMALINK

Tbroz wins the liars award, Three full day of huntung with the V.P. GOOD LUCK !

Posted by: rico swava' on February 16, 2006 at 5:49 PM | PERMALINK

Might not have been so bad to read. Back then the newspapers and media were on our side.

It's official, craigie. He does say this stuff just to torment you.

Posted by: shortstop on February 16, 2006 at 5:52 PM | PERMALINK

Gregory:

Do you think that an "audit of the program, a 'checklist' guide used to determine whether an individuals phone or e-mail messages could be monitored," and "documents showing how information gleaned through eavesdropping had been used," should be made public? Why or why not?

Posted by: tbrosz on February 16, 2006 at 5:56 PM | PERMALINK

Monkey See, what's so damn funny?

Posted by: Big Brother on February 16, 2006 at 5:58 PM | PERMALINK

Am I the only one whos familiar with our Constitution?
If you want a full investigation / political witch-hunt of Bush and his NSA program
CALL YOUR CONGRESSMAN.
(why are the Dems in the Senate House not making a bigger fuss)

ReadDebateDiscussDigest..

WHAT IF WIRETAPPING WORKS?
Wire Trap
by Richard A. Posner
https://ssl.tnr.com/p/docsub.mhtml?i=20060206&s=posner020606


The (supreme) Court wont touch this with a ten foot pole until Congress acts.
{What makes you guys think the 1973 FISA law is the first and last word in Executive Branch wartime powers?)

Posted by: Fitz on February 16, 2006 at 5:59 PM | PERMALINK
Am I the only one whos familiar with our Constitution?

I don't even thing your one of the ones who meet that description, much less the only one.

What makes you guys think the 1973 FISA law is the first and last word in Executive Branch wartime powers?

The 1978 Foreign Intelligence Surveillance Act (with subsequent amendments) has to do with the power of anyone to conduct electronic surveillance for foreign intelligence purposes under color of law, and criminalizes any such surveillance outside of what it specifically authorizes.

There are, of course, other laws which grant power to the executive in time of war, but not regarding electronic surveillance affecting US persons.

Posted by: cmdicely on February 16, 2006 at 6:03 PM | PERMALINK

What makes you guys think the 1973 FISA law is the first and last word in Executive Branch wartime powers?

there is no such law.

Posted by: cleek on February 16, 2006 at 6:04 PM | PERMALINK

Do you think that an "audit of the program, a 'checklist' guide used to determine whether an individuals phone or e-mail messages could be monitored," and "documents showing how information gleaned through eavesdropping had been used," should be made public? Why or why not?
Posted by: tbrosz on February 16, 2006 at 5:56 PM | PERMALINK

Who gives a crap? Of course it shouldn't be made public - but at the very least a FISA court judge needs to see it. All we're asking for is some god damned oversight. We keep saying this over and over, and you keep trying to play semantics games to try to trick one of us into saying something you can twist into support for Al Qaeda, so you can then use it as an example of how all liberals are in bed with Al Qaeda, and somehow, have given up on 85 years of feminism, and now want women in burqhas, and this is why Bush's program must absolutely go on unchecked and unmonitored, lest the terrorists win. God you're so fucked in the head, I can't imagine how much drain cleaner must have been injected into your skull as a child.

Posted by: Osama_Been_Forgotten on February 16, 2006 at 6:04 PM | PERMALINK

Back then the newspapers and media were on our side.
Posted by: tbrosz on February 16, 2006 at 5:41 PM

Gah! Tbrosz posts to an op-ed by Zell Miller. Zell Miller! My God. Is there now a parody of TB using his email cause this seems especially lame even for him.

Posted by: ckelly on February 16, 2006 at 6:06 PM | PERMALINK

It's official, craigie. He does say this stuff just to torment you.

Thanks for the laugh. That stopped me from jumping all over him. So little time, so many strawmen to set fire to...

Posted by: craigie on February 16, 2006 at 6:07 PM | PERMALINK

I believe the terrorists already won,I think there used to be a couple of buildings in New York that are now gone.Yea, The terrorists won that battle.At least we all knoww Al Gore would have saved us from that nightmare.

Posted by: rico swava' on February 16, 2006 at 6:09 PM | PERMALINK

IMO, Any President should stuff his wartime powers that violate our civil rights unless this country is in imminent danger of physical invasion or outright civil war.

Otherwise, it reeks of fear mongering and facist tactics.

Posted by: j swift on February 16, 2006 at 6:10 PM | PERMALINK


Osama (you wrote)
"""Of course it shouldn't be made public - but at the very least a FISA court judge needs to see it. All we're asking for is some god damned oversight."""

"All we're asking for"
"All we're asking for"

Who's asking- A bunch of guys in a comment box?
Well sure- CALL YOUR CONGRESSMEN- because they aint been asking for squat!!
(And their the important ones)

Posted by: Fitz on February 16, 2006 at 6:12 PM | PERMALINK
Who gives a crap? Of course it shouldn't be made public - but at the very least a FISA court judge needs to see it.

The request is not from the Foreign Intelligence Surveillance Court, but a ruling by a federal District Court judge on Freedom of Information Act requests from the Electronic Privacy Information Clearinghouse, the National Security Archives, and the American Civil Liberties Union.

Posted by: cmdicely on February 16, 2006 at 6:12 PM | PERMALINK

"So would a hell of a lot of other people. And of course, nobody at the EPIC would leak it to the public, would they?"

What do you mean 'leak'? Its a FOIA request. Its to make things available to the public.

Posted by: gr on February 16, 2006 at 6:13 PM | PERMALINK

Osama_been:

The article Kevin cites is not talking about turning this information over to FISA. They're talking about turning it over to an activist group, even if it's one I've supported in the past. I hope you can see the difference.

And hey? The secret word is "decaf."

Posted by: tbrosz on February 16, 2006 at 6:13 PM | PERMALINK

Some Background.

(FROM) http://www.baltimoresun.com/news/nationworld/bal-te.analysis17dec17,1,6591886.story?coll=bal-pe-asection&ctrack=1&cset=true

According to a New York Times report yesterday, Bush signed an executive order in 2002 authorizing the National Security Agency to track some international phone calls and e-mails sent to or from the United States without first obtaining a warrant.

This interpretation of the president's constitutional powers to defend the country far exceeds what executive branch lawyers had in mind in 1978 when they negotiated the terms of the Foreign Intelligence Surveillance Act, said Kenneth Bass, who was President Jimmy Carter's intelligence counsel when the law was passed.

That law, known as FISA, defined the government's spying authority and created an expedited means for the federal government to obtain warrants through a secret court to eavesdrop on conversations.

"It's fundamentally inconsistent with the executive branch view of [presidential power] at the time FISA was enacted," Bass said.

The thinking in the White House at the time, Bass said, was that there might be a very limited number of circumstances in which the president would need to authorize government officials to search or eavesdrop without a warrant. But those situations would be evaluated on a case-by-case basis, and the president would use that power only in extraordinary circumstances.

That interpretation was an informal understanding rather than a formal legal opinion, Bass said. It leaves open the possibility that subsequent presidents might interpret that power outside of the surveillance law more broadly, some national security lawyers said.

Posted by: Fitz on February 16, 2006 at 6:16 PM | PERMALINK

The request is not from the Foreign Intelligence Surveillance Court, but a ruling by a federal District Court judge on Freedom of Information Act requests from the Electronic Privacy Information Clearinghouse, the National Security Archives, and the American Civil Liberties Union.
Posted by: cmdicely on February 16, 2006 at 6:12 PM | PERMALINK

Yes, but in the broader picture, we wouldn't even be having this debate if Bush had just done his fucking job and followed the law; which means having turned this stuff over to a FISA judge in the first place.

Because he didn't now he's got to be taken to court, and these documents released, and the right is still trying to argue that somehow this endangers our safety. Bush's ignorant and incompetent execution of this program is what is endangering our safety, as well as everything we hold dear about being American. Bush and his supporters continue to try their hardest to make this country into a third-rate bannana republic.

Posted by: Osama_Been_Forgotten on February 16, 2006 at 6:19 PM | PERMALINK

Oh ya - that Federal Judges request aint going nowhere! (fast)

Sure its a case in controversy and he can stick his fat nose in- but it aint THE case in controversy thats going to draw the courts into THIS political squabble.

Sheeezzzz

Posted by: Fitz on February 16, 2006 at 6:20 PM | PERMALINK

Fitz,

We all know that Bush imagines he is monarchic powers and believes things like "the authority to set aside the law is inherent in the President."

We just, you know, disagree that this is a remotely reasonable reading of the Constitution.

Posted by: cmdicely on February 16, 2006 at 6:28 PM | PERMALINK
Yes, but in the broader picture, we wouldn't even be having this debate if Bush had just done his fucking job and followed the law; which means having turned this stuff over to a FISA judge in the first place.

And the intelligence committees in both Houses of Congress. Assuming, of course, that the surveillance was legal under FISA without a warrant, which I think it pretty self-evidently was not.

But then if Bush had followed the law, we wouldn't have a lot of problems we have today. Heck, if he had followed the Iraq AUMF (including the required determinations) in good faith, we wouldn't have that unpopular war still going on, because it wouldn't have been started.

But, apparently, Bush thinks his duty is to see that the laws are faithfully "executed" as in slain rather than "executed" as in "carried out".

Giving his history in Texas, I suppose, the obsession with that kind of execution shouldn't be a surprise, I suppose.

Posted by: cmdicely on February 16, 2006 at 6:31 PM | PERMALINK

A federal court issues orders, a private citizen makes requests under FOIA. That which qualifies for FOIA exemption 1 is going to be redacted, and it'll be plenty. Maybe not everything, though. And that'll be the next issue for litigation, presumably. (And exemption 5).

Posted by: CharleyCarp on February 16, 2006 at 6:33 PM | PERMALINK

I wish them luck, really I do.
I just think that whatever they get is going to have a lot of horizontal zebra stripes running across the pages.
3 more years of this mess, can we as a nation survive it?

Posted by: sheerahkahn on February 16, 2006 at 6:38 PM | PERMALINK

At least we all knoww Al Gore would have saved us from that nightmare.

no, we don't know that. but we do know that Bush didn't.

Posted by: cleek on February 16, 2006 at 6:39 PM | PERMALINK

But, apparently, Bush thinks his duty is to see that the laws are faithfully "executed" as in slain rather than "executed" as in "carried out".

Great line, worthy of the Daily Show.

Posted by: Windhorse on February 16, 2006 at 6:41 PM | PERMALINK

tbrosz wrote: Back then the newspapers and media were on our side.

And how ironic that with that comment you link to The Washington Times, a newspaper owned by the Reverend Sun Myung Moon, who has openly called for the US Constitution to be overthrown and the USA to be "subjugated" to his theocratic rule, and has openly stated that the purpose of The Washington Times is to further that goal.

Which "side" are you on, exactly?

Posted by: SecularAnimist on February 16, 2006 at 6:43 PM | PERMALINK

Well, as usual, DailyKos has the scoop on Drum:

Sen. Roberts just announced a deal with the White House to "fix" the FISA law to make this wiretapping legal.

. . . and this whole mess just quietly walks away.

Posted by: Osama_Been_Forgotten on February 16, 2006 at 6:44 PM | PERMALINK

Well, that's good for Roberts and the White House, I guess, but I haven't heard of Sen. Specter and the Judiciary Committee giving up their investigations. And, you know, making the program legal kind of involves admitting it was, and remains until that change is made law, prohibited by FISA and thus a crime.

Posted by: cmdicely on February 16, 2006 at 6:55 PM | PERMALINK

Don't you get it?
Bush was advised by his lawyers at the DoJ - they made the mistake, not him. It will be framed as "just a silly mixup" - and with the FISA "fix" the urgency will be gone.

Yup, stick a fork in it folks. I hereby declare this story dead. In 48 hours, nobody's going to give a shit if Bush's advisors, oops, erred on the side of caution in protecting us from Al Qaeda.

Just like the "hunting accident" was dead after a simple statement by Cheney.

Just like Plamegate is dead now that Cheney said he can declassify whatever he wants at any time.

What have we got left? Katrina? They've got plausible scapegoats there (Brownie and/or the Locals).

Posted by: Osama_Been_Forgotten on February 16, 2006 at 7:00 PM | PERMALINK

Maybe it is the appropriate time to rename the "Department of Justice" the "Ministry of Justice", to bring it line with it's current relationship to Justice similar to Orwell's Ministries of Peace, Love, and Truth.

Posted by: patrick on February 16, 2006 at 7:03 PM | PERMALINK
Don't you get it?

I get what they are going to argue. I don't think its a done deal that they get away with it.

Bush was advised by his lawyers at the DoJ - they made the mistake, not him. It will be framed as "just a silly mixup" - and with the FISA "fix" the urgency will be gone.

I don't think the "fix" is a done deal; even among Republicans. Sure, Roberts and the White House may agree, but Roberts isn't King of the Senate.

Yup, stick a fork in it folks. I hereby declare this story dead.

Good for you.

Just like Plamegate is dead now that Cheney said he can declassify whatever he wants at any time.

It is? I guess Patrick Fitzgerald closed up shop...no, wait he didn't. So, I agree, that the FISA issue is dead "just like" Plamegate is dead, in that neither characterization is true, at all.


Posted by: cmdicely on February 16, 2006 at 7:08 PM | PERMALINK

Oh, the Fitzgerald circus will go on, and Libby's gonna get up there on that stand and go: "why, yes your honor, my boss told me that this information was de-classified, he has the power to do that, Executive Order number blah blah blah blah..."

Then they'll call Cheney up to the stand (probably via video from his remote undisclosed bunker) "thank you mister Cheney for taking time out from your busy day, and by the way, no need to bother with all that swearing-in stuff, you're word is good" - and Cheney says "yes, I did tell Mr. Libby that this information is declassified - I had that verified at the very highest levels of the CIA that she was just a filing clerk, and hadn't been out of the country in 3 years, and blah blah blah blah blah"

case closed. Worst case, Libby does time for lying - but is pardoned for being such a great Patriot.

Posted by: Osama_Been_Forgotten on February 16, 2006 at 7:17 PM | PERMALINK

Maybe I missed the boat on this, but did Al's paychecks stop coming in? I haven't seen him trolling here lately.

Also, you right wing pussies need to quit surrending our freedoms to the terrorists because you're afraid. I'd rather keep my freedoms and take my chances. Thanks, though.

Posted by: Monkeyboy on February 16, 2006 at 7:36 PM | PERMALINK


tbrosz wrote: [i]Back then (WW II) the newspapers and media were on our side.[/i]

Heh.

William Randolf Hearst and his newspaper empire were rabidly anti-Roosevelt. FDR had many other media enemies as well.

So, you are correct if you mean the media was largely Republican-controlled. However, most voters were Democrats. So if by "our side" you mean the majority of Americans or the President, you are wrong.

Furthermore, it was the [i]Republicans[/i] who were anti-war isolationists, not the Democrats. The isolationists called themselves the "America First" movement, making it sound patriotic to be anti-war. Even back then the GOP was good at spin.

Posted by: Broken on February 16, 2006 at 7:42 PM | PERMALINK

If anyone wants to have a serious discussion of the issue, as opposed to the usual back and forth, one might ask whether the Supreme Court supports a more expansive view of the President's powers in foreign policy, which includes intelligence gathering of enemies and potential enemies.

The answer is that on several occasions, it has said exactly that: that the President has near-exclusive, and very expansive, powers to conduct foreign affairs that include war-making and intelligence-gathering. That includes court decisions such as US v Curtiss-Wright Export (1936), Navy v Egan (1988), Johnson v Eisentrager (1950), and the most recent Hamdi v Rumsfeld (2004). In each, the USSC held that the presdient had exclusive authority over foreign affairs, and in the first two, that the executive's authority over intelligence gathering was so basic as to not even be questioned.

Now one could disagree with that and say that the FISA law of 1978 trumps all that. Even getting past the notion that a statue can trump the Constitution (it can't), it remains that both Griffin Bell and Jamie Gorelick argued ably for their respective bosses (Carter and Clinton) that FISA did not constrain the ability of the President to gather intelligence on foreign nationals, whether those individuals were outside of or within the borders of the US.

But if you really think that what Pres. Bush has been doing is illegal (because you're not going to argue that it's wrong somehow to gather intel on al-Qaeda; that's political suicide and you know it), if you really think he's going about it incorrectly, you have a couple of choices that are completely constitutional:

1) get Congress to defund the NSA program

2) get Congress to impeach the President

Neither, of course, is going to happen. So Congress in the end is going to acquiesce and recognize that while FISA is on the books, each and every President, Republican or Democratic, who comes along is going to ignore FISA.

I point this out because if you get your wish in 2008 and elect a Democrat as president (pigs might sprout wings, but hey, it could happen), one of the things I know for sure is that said Democrat will ... ignore FISA if (s)he feels it's necessary for national security.

FISA is a post-Watergate poaching by Congress on what properly belongs to the Executive. In an ideal world that would be debated rationally and fixed, or (alternately) the Constitution would be amended to make it more clear where the President's powers end and where Congress' powers begin. We don't live in that ideal world.

In the world we live in, FISA simply doesn't apply to the ability the President (any President, R or D) has to conduct operations to penetrate the communications of a foreign enemy or potential enemy. That's the issue, and that's why, when all the appeals are done, this FOIA request by EPIC will (I predict) fail.

Posted by: Steve White on February 16, 2006 at 7:44 PM | PERMALINK

Steve, please go re-read Scalia's dissent in Hamdi v Rumsfeld (2004). He says that the Constitution is there specifically FOR the purpose of limiting presidential power in wartime.

"Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it." - Antonin Scalia, eviscerating the Bush administration's detention of terror suspects without charges or trials.
Posted by: Osama_Been_Forgotten on February 16, 2006 at 7:53 PM | PERMALINK

The Bush cult believes the Constitution has been suspended for the duration of the emergency, it seems.

Fuhrerprinzip and Ermchtigungsgesetz: Two great tastes, that taste great together!

Posted by: Dustbin Of History on February 16, 2006 at 8:13 PM | PERMALINK
The answer is that on several occasions, it has said exactly that: that the President has near-exclusive, and very expansive, powers to conduct foreign affairs that include war-making and intelligence-gathering. That includes court decisions such as US v Curtiss-Wright Export (1936), Navy v Egan (1988), Johnson v Eisentrager (1950), and the most recent Hamdi v Rumsfeld (2004). In each, the USSC held that the presdient had exclusive authority over foreign affairs, and in the first two, that the executive's authority over intelligence gathering was so basic as to not even be questioned.

Well, to start with, its a mistake to say that the "Court held thus and so" when there is no majority opinion, and thus no single opinion to turn to as a rationale, as in, e.g., Hamdi v. Rumsfeld, especially on a point where the opinions supporting the order to remand don't agree.

Further, nothing like your contention is found in the plurality opinion in Hamdi, which explicitly doesn't reach inherent executive powers, relying instead on express Congressional authorization under the AUMF.

Without rereading I can't say with authority whether you have mispresented the other cases as badly, though from my recollection of those cases I suspect you have.

But nice attempt to snow people by just spouting names of cases and hoping no one would actually know anything about their content.

Posted by: cmdicely on February 16, 2006 at 8:17 PM | PERMALINK

Steve White,

Stick to medicine - You really do not want to commit malpractice in two areas, medicine and the law as well, do you?

Posted by: thethirdPaul on February 16, 2006 at 8:35 PM | PERMALINK

It's amusing that the right wing is always accusing liberals of being in bed Al Qaeda. It was the Bush administration that called off the war on Al Qaeda so they could conquer Iraq. It was the Bush administration who let Osama walk out of Tora Bora. It was Bush himself who said he didn't care about Osama. It's Bush who holds hands with the Saudi royals, who has a long lasting relationship with the Bin Ladens. It was Bush who closed down American military bases in Saudi Arabia, thereby granting one of Osama's demands.

Posted by: Another Bruce on February 16, 2006 at 8:41 PM | PERMALINK

And now all together:

WHY DO FEDERAL JUDGES HATE AMERICA?

Posted by: ogmb on February 16, 2006 at 8:45 PM | PERMALINK

Steve White on February 16, 2006 at 7:44 PM:

Now one could disagree with that

OBF got you on that one, I'm afraid...

Even getting past the notion that a statue can trump the Constitution...

Yet somehow you get past an the notion that the disputable, implied power of the office of President overrides the explicitly-stated Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Pretty straightforward.

...FISA did not constrain the ability of the President to gather intelligence on foreign nationals

What about American citizens? What did Gorelick and Bell argue about gathering intelligence on American citizens, Steve?

But if you really think that what Pres. Bush has been doing is illegal

Yes, many people do, including Dubya, who has admitted it.

...you have a couple of choices that are completely constitutional...

Yawn...The PowerLine "I double-dog dare you" schtick got old, oh, around 6th grade.

Option three: Keep beating the GOP over the head with supporting Dubya's failure to uphold his oath of office, Republican corruption, Katrina failures, et cetera.

So Congress in the end is going to acquiesce...

Of course! What party holds the majority in Congress? What party has served as a rubberstamp for almost every Dubya policy initiative?

FISA is a post-Watergate poaching by Congress on what properly belongs to the Executive.

Bullshit. FISA is way to reconcile the need for the Executive branch to gather intelligence with the need for oversight by an arbiter (the courts) explicitly stated in the Constitution. It came about because of Nixon's abuse of power to spy on those he considered 'enemies'...C'mon, you know the history.

...where the President's powers end and where Congress' powers begin.

Not beginnings and endings; more like checks and balances.

In the world we live in

The world is what you make of it. Haven't you learned that yet?

FISA simply doesn't apply to the ability the President...has to conduct operations...

Funny, because that's exactly why it was created, Steve.

...to penetrate the communications of a foreign enemy or potential enemy.

Quakers and nuns are potential enemies? Who gets to define what a 'potential enemy' is, Steve?...Karl Rove? Everyone's a 'potential enemy' to the evil, weak, and paranoid.

I mean, you come off as intelligent and reasonable; it's too bad you'd rather regurgitate partisan talking points than actually think about what's really wrong about an unrestrained executive.

Posted by: grape_crush on February 16, 2006 at 9:03 PM | PERMALINK

The answer is that on several occasions, it has said exactly that: that the President has near-exclusive, and very expansive, powers to conduct foreign affairs that include war-making and intelligence-gathering.

I wonder why the authoritarians who always claim (a) never made this claim when Clinton was waging the Kosovo war and (b) why they seem to ignore the clear language of the Constitution itelf, being the strict constructionists they are. Article 1, Section 8 of the Consitution provides that the legislature shall have the power to "provide for the common Defence and general Welfare of the United States" including

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

That sure seems like Congress has quite a lot of power when it comes to warmaking. The President's powers, meanwhile, are summed up in only one line, which is "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...." And, as I've said before, a key motivation of the Founders when writiting that line was not to place the executive over the legislative, but to ensure that civilian power, as embodied in the president, wasn't usurped by the military, that is, to prevent some general during wartime from seizing power by declaring himself commander-in-chief.

Posted by: Stefan on February 16, 2006 at 9:06 PM | PERMALINK

Instead of combing through America's e-mail and phone calls, wouldn't it be smarter to go where al Qaida is living these days such as Pakistan? Wouldn't it be smarter to train a lot more people to know the languages in the area? And to know the culture? Wouldn't it be smarter to hire experts on terrorism instead of relying on wingnuts to do the job? Wouldn't it be smarter to have more security at our ports, to beef up the Coast Guard (which are almost the only ones who did a great job during Katrina) and to actually have a plan if there's an attack?

Ohhh, that's right, we're talking Bush and Cheney.

Posted by: Craig on February 16, 2006 at 9:20 PM | PERMALINK

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Posted by: David on February 16, 2006 at 9:43 PM | PERMALINK

Instead of combing through America's e-mail and phone calls, wouldn't it be smarter to go where al Qaida is living these days such as Pakistan? Wouldn't it be smarter to train a lot more people to know the languages in the area? And to know the culture? Wouldn't it be smarter to hire experts on terrorism instead of relying on wingnuts to do the job? Wouldn't it be smarter to have more security at our ports, to beef up the Coast Guard (which are almost the only ones who did a great job during Katrina) and to actually have a plan if there's an attack?

Only if you actually planning to fight this thing called 'GWOT", or 'Long War' or whatever the focus groups are calling it this week.

If, on the other hand, you want to keep frightening those knuckleheads hunkering down in their Wisconsin basements, then why would you bother?

In other news, a grand total of 29% of Australians now have a positive view of America.

Why does the US journal which published the report hate America? Doesn't it realise that it's giving comfort to the 71% of Australians (traitors and bin Laden fellow travellers all) who have had many years of watching Bush stumble embarrassingly around the world stage and can now state, with great confidence, that he is in fact a dangerously ignorant figurehead of a state careering blindly down the wrong path.

Posted by: floopmeister on February 16, 2006 at 9:53 PM | PERMALINK

In other news, a grand total of 29% of Australians now have a positive view of America.

To have the Australians, who are some of the friendliest, most easy-going and most American-like people on the planet (I sometimes think of Australia as America without all the stress) think ill of us really is a symbol that we've gone off the deep end. Next we'll find out that the Dalai Lama, sweet-natured old nuns and puppy dogs hate our fucking guts.

Posted by: Stefan on February 16, 2006 at 10:02 PM | PERMALINK

I point this out because if you get your wish in 2008 and elect a Democrat as president (pigs might sprout wings, but hey, it could happen), one of the things I know for sure is that said Democrat will ... ignore FISA if (s)he feels it's necessary for national security.

Why? Carter, Reagan, Bush the Competent and Clinton didn't. They all obeyed FISA. So that thing you claim to know for sure is, instead, a mere flight of fancy, a nice little fantasy you have running through your mind.

Posted by: Stefan on February 16, 2006 at 10:04 PM | PERMALINK

Stefan, the bigger irony is that we Australians aren't that popular ourselves. We've strongarmed East Timor ever since it got independence, pissed off a great number of our Asian neighbours under Howard (who threatened 'preemptive war' against any neighbouring country harboring 'terrorists' - with what? All our armed forces are stumbling around Iraq, Afghanistan, the Solomon Islands and East Timor) and refused to ratify Kyoto.

Oh, and not to mention housing refugees in our own little concentration camps (Gitmo-lite) up in the Northern deserts.

Nah, we're not that popular ourselves.

The only difference is that we don't try to fool anyone (least of all ourselves) that we're The Leaders of the Free World (TM) or on a Godgiven mission to spread Democracy(TM) to everyone else.

A history as a penal colony tends to discourage delusions of grandeur. Our sin is Complacency, rather than Imperial Arrogance.

Posted by: floopmeister on February 16, 2006 at 10:14 PM | PERMALINK

cmdicely:

...And the intelligence committees in both Houses of Congress.

The ranking members, from both parties, were informed of the program more than once, a fact that seems to be erased each time it's brought up. The rather lame excuses of the Democratic members, like Rockwell, haven't gone over all that well.

***

SecularAnimist:

And how ironic that with that comment you link to The Washington Times, a newspaper owned by the Reverend Sun Myung Moon, who has openly called for the US Constitution to be overthrown and the USA to be "subjugated" to his theocratic rule, and has openly stated that the purpose of The Washington Times is to further that goal.

Good speech, but completely irrelevant. The article was an opinion column by Zell Miller. You're free to jump all over Miller if you like. Aside from that, it's of zero consequence whether that article appeared in the Washington Times, the New York Times, or scratched on a bathroom wall.

Posted by: tbrosz on February 16, 2006 at 10:21 PM | PERMALINK

Just because those nuns and puppies don't hate us yet doesn't mean the NSA isn't listening for the moment they change their minds and call their friends in Australia to let them know. Same goes for that Dalai-stateless-Lama.

Posted by: TJM on February 16, 2006 at 10:22 PM | PERMALINK

Well I don't want any of those cancers so I ain't clicking on the link.

Stronger orgasms, on the other hand...

Posted by: floopmeister on February 16, 2006 at 10:27 PM | PERMALINK

The ranking members, from both parties, were informed of the program more than once

feel free to explain how my telling you something and forbidding you to tell anyone else about it is in any way equivalent to giving you oversight of it.

Posted by: cleek on February 16, 2006 at 10:48 PM | PERMALINK

Aside from that, it's of zero consequence whether that article appeared in the Washington Times, the New York Times, or scratched on a bathroom wall.

You don't really mean this, do you? Basic high school media studies should give you an inkling as to why this might be a little silly.

On the other hand, if you do mean this, I hope you remember it next time anyone here links to an article from al-Jazeera.

Posted by: floopmeister on February 16, 2006 at 10:53 PM | PERMALINK

floop: A history as a penal colony tends to discourage delusions of grandeur.

You'd think so, wouldn't you? But remember how quite a few of our own original boys and girls got here from Europe. A couple of my own ancestors, for example, were offered all-expenses-paid vacations in the New World as an alternative to a close and lasting relationship with rope.

But today many adjectives can be applied to my family, but "imperial" is not among them. So there you go.

TJM: Just because those nuns and puppies don't hate us yet doesn't mean the NSA isn't listening for the moment they change their minds and call their friends in Australia to let them know. Same goes for that Dalai-stateless-Lama.

Fantastic!

Posted by: shortstop on February 16, 2006 at 11:19 PM | PERMALINK

Shortstop: of course - I similarly wouldn't describe any of my American friends as suffering from 'Imperial Arrogance', just like (I hope) I don't suffer from 'Complacency'. I think it's useful/justifiable/common to talk of national character, which of course does not necessarily relate to the individual character of any of the citizens of that country.

I was painting with a very broad brush there...

A couple of my own ancestors, for example, were offered all-expenses-paid vacations in the New World as an alternative to a close and lasting relationship with rope.

As another interesting aside, I was born and raised in Adelaide, which was set up as a utopian society (a 'light on the hill', if you will) by English Whig gentlemen. The founder was Colonel Light, whose father, if I remember correctly, founded Penang.

No convicts involved in the settling of South Australia, for which Crow Eaters are inordinately proud...

It's that broad brush again.

Posted by: floopmeister on February 16, 2006 at 11:28 PM | PERMALINK
The ranking members, from both parties, were informed of the program more than once, a fact that seems to be erased each time it's brought up.

The ranking members are not the whole committee, they were forbidden from talking to others, and from their own statements the information they were given at the time was neither accurate based on the information they've received since it became public nor of the scope required for the Congressional disclosures under FISA.

I'm not exactly impressed that the Administration told four members of Congress that they were doing something along the lines of what they were actually doing but gave minimal information and even that not accurate, and insisted that they not tell anyone else about it.

Posted by: cmdicely on February 16, 2006 at 11:29 PM | PERMALINK

Ah, no, floop, I wasn't being defensive or taking it personally. I'm with you all the way on the imperial arrogance of Americans thing. Just making a small joke about my own family's humble beginnings in America.

Posted by: shortstop on February 16, 2006 at 11:31 PM | PERMALINK

Shortstop: Oh, OK - that's cool.

Just didn't want my rants to be taken too personally. It's hard communicating in this format sometimes, without the nuances of body language or expression to fine tune the message...

You know, the relationship between Australians and Americans is like the relationship between Kiwis and Australians - we are (rightly) criticised long and loud by New Zealanders for being hopelessly uninformed and arrogant towards our smaller neighbour. That's what drives a lot of the ill feeling towards America in Australia - and yet we act the same way towards NZ.

And yet, Kiwis aren't making a personal attack on us as individuals - it's simply that national character thing again...

Posted by: floopmeister on February 16, 2006 at 11:40 PM | PERMALINK

floopmeister:

I hope you remember it next time anyone here links to an article from al-Jazeera.

Again, depends on who wrote it and what it says, doesn't it? Or at least it should.

Sure, you can often use the source of an article to predict what its tone and politics might be. For example, you can be pretty sure the New York Times is going to lean left. Or the Washington Times is going to lean right.

But you have to admit that going off on a blue rant about Moonies when discussing an opinion piece by Zell Miller is really a bit off the wall.

Posted by: tbrosz on February 17, 2006 at 12:06 AM | PERMALINK

ve admit nusink!

Posted by: craigie on February 17, 2006 at 12:19 AM | PERMALINK

What's this portgate thing I hear the wingnut radio jocks going on about? Something about the United Arab Emirates has been awarded a contract supervising 7 major shipping ports in the USA.

Does the NSA know about this? [sarcasm]

Posted by: Neo on February 17, 2006 at 12:41 AM | PERMALINK

For the latest news, key hearings, legal documents, statutes and other materials in the domestic spying scandal, see:
"The NSA Domestic Spying Resource Center."

Posted by: AvengingAngel on February 17, 2006 at 1:20 AM | PERMALINK

tbrosz: Do you think that an "audit of the program, a 'checklist' guide used to determine whether an individuals phone or e-mail messages could be monitored," and "documents showing how information gleaned through eavesdropping had been used," should be made public?

And what, pray tell, does that argument have to do with the bullshit that you posted? Which, I might add, were entirely off topic (to wit, "Democrats want to kill the program" -- leaving aside, of course, that many Republicans are, as they ought to be, uncomfortable with the administration spying illegally and without oversight -- and "the liberal media is in the enemy camp"). After such a startling display of intellectual dishonesty, it's a bit late to play the reasonable-debater card. I presume you only did so because you really have no defense for your pathetic little arguments.

Sure, tbrosz, you can debate honestly, but as I've said in the past, it's to your shame that you so often choose not to. That proclivity makes you worthy of nothing but scorn, even if you do have decent taste in comic books. Shame on you.

Posted by: Gregory on February 17, 2006 at 8:53 AM | PERMALINK

"you can be pretty sure the New York Times is going to lean left."

'Specially those pieces by Bumiller, Nagourney, Miller, Bobo, Tierney, and the rest of the gang.

Posted by: Arr-squared on February 17, 2006 at 1:21 PM | PERMALINK




 

 

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